Legal memos released on Bush-era justification for warrantless wiretapping

Washington Post

September 6, 2014

WASHINGTON — The Justice Department released memos Friday night offering the fullest public airing to date of the Bush administration's legal justification for the warrantless wiretapping of Americans' phone calls and emails — a program that began in secret after the 9/11 attacks.

The broad outlines of the argument — that the president has inherent constitutional power to monitor Americans' communications without a warrant in a time of war — were known, but the sweep of the reasoning becomes even clearer in the memos written by then-Assistant Attorney General Jack Goldsmith, who was head of President George W. Bush's Office of Legal Counsel.

“We conclude only that when the nation has been thrust into an armed conflict by a foreign attack on the United States and the president determines in his role as commander in chief ... that it is essential for defense against a further foreign attack to use the wiretapping capabilities of the National Security Agency within the United States, he has inherent constitutional authority” to order warrantless wiretapping — “an authority that Congress cannot curtail,” Goldsmith wrote in a redacted 108-page memo dated May 6, 2004.

The program, code-named Stellar Wind, enabled the NSA to collect communications on U.S. soil when at least one party was believed to be a member of al-Qaida or an al-Qaida affiliate, and at least one end of the communication was overseas.

Its existence was revealed in 2005 by the New York Times, setting off great controversy, and the program was finally brought under court oversight in 2007.

“What these memos show is that nearly three years after President Bush authorized the warrantless wiretapping of Americans' emails and phone calls, government lawyers were still struggling to put the program on sound legal footing,” said Patrick Toomey, staff attorney for the American Civil Liberties Union, which obtained the memos through a Freedom of Information Act lawsuit.

“Their conclusions are deeply disturbing,” he said. “They suggest that the president's power to monitor the communications of Americans is virtually unlimited — by the Constitution, or by Congress — when it comes to foreign intelligence.”

Goldsmith argued that Congress's 2001 Authorization for the Use of Military Force (AUMF) passed shortly after the al-Qaida attacks on the United States provided “express authority” for the warrantless program. “In authorizing 'all necessary and appropriate force,'” he reasoned, the AUMF necessarily applied to electronic surveillance, including domestically.

He also asserted that the authorization can be read to “provide specific authority ... that overrides the limitations” of the Foreign Intelligence Surveillance Act, a law passed in 1978 that required a court order to wiretap an American or any person on U.S. soil.

In a second memo, dated July 16, 2004, Goldsmith argued that a Supreme Court decision reached weeks earlier, involving a U.S. citizen named Yaser Esam Hamdi captured on the battlefield in Afghanistan, bolstered the reasoning of his first memo. Five justices in the decision, he said, agreed that Hamdi's detention was authorized because it is a “fundamental” and “accepted” incident of waging war, he said.

The memos were written at a time of high-level internal debate about the legality of the surveillance programs. And they do not discuss at length what was reported to have been at the time the most controversial of the programs: the NSA's bulk collection of email metadata, or mass gathering of information such as the to-from lines in an email.

In March 2004, the Office of Legal Counsel concluded the email program was not legal, and then-acting attorney general James Comey refused to reauthorize it.

That refusal resulted in a dramatic showdown that month between Attorney General John Ashcroft, who was in the hospital with a severe pancreatic ailment, and White House counsel Alberto Gonzales, who had rushed to Ashcroft's hospital bedside in a futile attempt to persuade him to reauthorize the email program. In July 2004, the Foreign Intelligence Surveillance Court authorized the program under a theory that bulk email collection could be relevant to a terrorism investigation. That program was shut down in 2011.

The warrantless program was placed under statute in 2007 and 2008 by Congress. The current program, known as Section 702 of the FISA Amendments Act, gives the government authority to collect communications on U.S. soil when the target is believed to be a foreigner overseas — not just for purposes of countering terrorism, but also for broader foreign intelligence purposes.